SOUTH UNION TOWNSHIP, Pa. — “Think of John Henry.â€
That was Fayette County-based attorney Sam Petsonk’s advice on accounting for the long history of shortened breaths and lives leading up to federal regulators lowering the limit on mine worker exposure to toxic silica dust in a rule published Thursday.
Henry was a folk hero that legend contends beat a steam-powered drilling machine in a 19th-century steel-driving contest before dying from exhaustion. But he more likely died of silicosis or another work hazard, according to the National Park Service.
The agency conservatively estimates that at least 764 workers, a majority of whom were Black, died of silicosis stemming from excavation of the Hawk’s Nest Tunnel in Fayette County to divert water from the New River for a hydroelectric plant downstream.
“In West Virginia, we have long known about the dangers of silica dust and what it can do to people,†Mine Safety and Health Administration Assistant Secretary Chris Williamson said in an interview Tuesday at the United Mine Workers of America’s District 2 office just outside Uniontown, Pennsylvania.
This year marks a half-century since the National Institute for Occupational Safety and Health, the federal agency that makes recommendations for preventing work-related illnesses, recommended lowering the limit for silica dust from 100 micrograms to the new standard of 50 micrograms per cubic meter of air.
Asked in an interview what took the federal government so long to follow through on NIOSH’s recommendation, UMWA International President Cecil Roberts pointed at the coal industry. Roberts noted the role of industry opposition in a multigenerational delay in federal recognition of respiratory damage via black lung disease until the 1969 Federal Coal Mine Health and Safety Act.
“There’s your answer,†Roberts said.
“[W]ithout strong enforcement mechanisms, and without any prohibition against miners being forced to work in excessive dust, I’m not sure that this will actually reduce levels of black lung,†said Willie Dodson, who is the central Appalachian field coordinator for Appalachian Voices, a North Carolina-based environmental and miner advocacy nonprofit.
“We cannot rely on the coal mining companies that created the silica dust crisis to solve it,†Rebecca Shelton, policy director at the Appalachian Citizens’ Law Center, a Whitesburg, Kentucky-based miner advocacy law firm, said in a statement. “We need strong safeguards with no loopholes and enforced accountability, but this rule does not meet that standard.â€
The new MSHA rule follows a long history of mine operators tampering with dust samples:
- In 1991, MSHA issued 4,710 citations to more than 500 companies for tampering with coal mine dust samples at nearly 850 mines.
- In August 2020, Grundy, Virginia-based D&H Mining, its owner and one of its foremen were sentenced in federal court for conspiring to defraud the United States by committing dust-sampling fraud to bypass MSHA health standards.
- In June 2023, Eastern Kentucky-based Black Diamond Coal Co. LLC and a certified dust examiner were sentenced in federal court for violating MSHA regulations mandating accurate coal dust sampling in underground mines. Black Diamond was sentenced for submitting false samples.
Shelton cited comments her group submitted to MSHA in September when it sought feedback on the then-proposed rule warning coal operators would “look for every opportunity†to cheat on dust sampling.
“I know how some companies talk safety and health, but they know how to manipulate the rules and dust samples,†Andy Martin told MSHA officials during a hearing on the then-proposed rule in Beckley in August, having recalled working in the same Wyoming strip mine for almost 27 years.
“If you’re a normal employee and your job is where the dust is, they will put you in an area where the dust isn’t as bad when MSHA is around.â€
“Cheating the samples is what we need to stop,†three-decade mine veteran Terry Lilly told MSHA officials during the hearing, struggling to speak at 40% lung capacity as he recalled hiding dust samples. “If we could stop this, we could save some lives.â€
- Allows coal miners to work in coal production while corrective actions are taking place, upsetting miner advocates who wanted production to be paused while corrective actions are taking place
- Maintains quarterly MSHA frequency of required sampling deemed too low by many mine safety proponents
- Rejects miner ally calls for a lower exposure limit of 25 micrograms well above median mine exposures for coal, metal and nonmetal mines
- Gives coal mine operators 12 months and metal and nonmetal mine operators 24 months to comply with the final rule, much longer than the initial 120 days allotted in the proposed rule
“Miners deserved a rule that would have maximized the prevention of disease and death and we’re saddened this opportunity was missed,†Appalachian Citizens’ Law Center executive director Wes Addington said in a statement.
Where UMWA expects rule ‘blowback’
The West Virginia Coal Association and National Mining Association both accepted MSHA’s planned 50-microgram limit in comments on the rule proposal but have argued MSHA’s rulemaking overemphasizes engineering controls. Such controls include water sprays that prevent or redirect dust, ventilation systems that capture dust at its source and process enclosures that restrict dust from migrating outside an enclosed area.
NMA spokesperson Ashley Burke said Tuesday the rule should have heeded a trade group recommendation that administrative controls — defined by MSHA as practices that change the way tasks are performed to reduce a miner’s exposure — have greater emphasis under the new rule.
The rule held that administrative controls like proper work positions of miners and clothing contamination prevention measures are less reliable than properly designed engineering controls because they don’t rely on human behavior, concluding the former controls should only supplement the latter.
West Virginia Coal Association president Chris Hamilton did not respond to a request for comment.
Roberts, who praised MSHA’s final rule, said he expects industry “blowback†to the rule to be most concentrated in southern West Virginia, southern Virginia and eastern Kentucky.
“[T]here’s just an abundance of silica coming out of some of those mines,†Roberts said. “That’s where you might hear some pushback or see some pushback against MSHA, whether it’s legal or whatever.â€
The final rule from MSHA comes amid a sharp rise in recent years in severe, preventable black lung disease among central Appalachian mine workers.
Central Appalachia’s share of miners with large opacities on chest X-rays has dwarfed the number of miners with the same result outside the region, defined as West Virginia, Kentucky and Virginia, according to data reported by the Gazette-Mail in August 2023.
The data spanning July 2019 through June 2023 show 83.4% of miners with large opacities on chest X-rays seen at federally supported black lung clinics were in those three states, with West Virginia having a persistently high concentration of such miners.
Just 44.7% of coal miners nationwide were employed in West Virginia, Kentucky and Virginia on average in 2021, underscoring the outsized incidence of severe lung disease in the region, per federal Energy Information Administration data.
West Virginia black lung clinics operating with the support of the state Department of Health and Human Resources, a federal grantee, accounted for 35.2% of all miners with large opacities on chest X-rays seen at federally supported black lung clinics since 2021. Through the first six months of 2023, those West Virginia clinics were on pace to set a four-year high in such miners.
NIOSH researchers found in a 2018-published study of lung exams collected from 1970 to 2017 that 20.6% of miners with careers of 25 years or more in West Virginia, Kentucky and Virginia had black lung — a pronounced increase following a national low point in the late 1990s.
Miners throughout the region are cutting into more surrounding rock as coal seams thin, yielding greater exposure to silica dust. The result is a rise in severe, preventable black lung in younger miners.
In an interview Friday afternoon, Williamson defended the rule against the criticism that a mine’s production should pause while corrective action is taken to comply with the new exposure limit.
In an underground coal mine, Williamson said, immediate corrective action may consist of water sprays on a miner machine requiring replacement.
“It’s something that may not take that long, and that’s maybe one section in the whole mine,†Williamson said, questioning the wisdom of shutting down the entire mine to fix that issue.
Official: MSHA should have made exposure limit lower
The new final rule, covering what’s more formally known as respirable crystalline silica, creates an action level of 25 micrograms for a full-shift exposure.
When miner exposures are at or above the action level but at or below the permissible exposure limit, the final rule requires mine operators to perform periodic sampling until miner exposures are below the action level.
The rule requires miners’ exposures to silica to be monitored through recent sampling and qualitative evaluations, removing an option of using industry-wide objective data or historical sample data included in the rule as initially proposed.
MSHA projects the rule, which drew hearty support from the United Steelworkers, AFL-CIO and National Black Lung Association President Gary Hairston in addition to the UMWA Tuesday, will result in 1,067 lifetime avoided deaths and 3,746 lifetime avoided cases of silica-related illnesses.
But Shelton pointed to a final risk analysis the MSHA released on its rule to argue that the MSHA still came up short in its rulemaking with lives on the line.
The analysis projects that 1,372 coal miners will still become ill and 2,940 will die from 45 years of exposure to silica under the rule.
Achieving an action level in the rule of 25 micrograms per cubic meter of air would save more than three times as many lives and prevent nearly twice as many cases of disease in coal mines, according to the MSHA’s analysis.
But even though MSHA reported the median coal miner exposure is 16 micrograms per cubic meter — well below the new 50-microgram limit — MSHA said compliance with a 25-microgram limit would be a “substantial challenge†for some mines. The agency also projected a $520.7 million annualized cost of requiring mines to maintain exposure levels below 25 micrograms — nearly six times more than the final requirements under the new rule.
“It will be difficult to explain to mining families why, from the perspective of the law, the continuation of certain mines in the industry is worth the lives of their loved ones,†Shelton said in an email.
